CITATION: Tasmania v Martin (No 2) [2011] TASSC 36
PARTIES: STATE OF TASMANIA v MARTIN, Terence Lewis
FILE NO/S: 521/2009 DELIVERED ON: 23 June 2011 DELIVERED AT: Hobart HEARING DATE: 17, 18 February; 13, 14 April; 1 June 2011 JUDGMENT OF: Porter J
Criminal Law – Procedure – Information, indictment or presentment – Joinder – By statute – Same facts or series of offences of same or similar character – Sexual offences against a young person – Joinder of count of possession of child exploitation material – Whether offences of same or similar character.
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency under uniform evidence law – Other cases – Sexual offences against a young person – Admissibility of evidence of possession of child pornography – Whether evidence of significant probative value – Whether evidence should be excluded.
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – For particular purpose – Rebuttal of possible defence – Particular cases – Sexual offences against young person – Out of court statements by accused of abhorrence of sexual intercourse with young persons – Evidence of possession of child pornography admissible for purposes of context and credibility.
Aust Dig Criminal Law [2784]
Criminal Law – Evidence – Relevance – Particular cases – Sexual offences – Statutory prohibition except with leave on evidence of the sexual experience of the complainant – Leave not to be granted unless Court satisfied the evidence has direct and substantial relevance to a fact or matter in issue – Meaning of "direct and substantial relevance."
Criminal Law – Evidence – Relevance – Particular cases – Sexual offences against young person – Belief of accused as to age of complainant relevant to all counts – Offences committed in the course of complainant's work as a prostitute – Relevance of evidence of other clients of complainant as to observations and belief about age.
Simmons (1931) 23 Cr App R 25; USA v Yazzie 976 F 2d (9th Cir 1992), considered. Aust Dig Criminal Law [2675]
REPRESENTATION:
Counsel: Crown: D G Coates SC and J Ansell Accused: P E Barker Solicitors: Crown: Director of Public Prosecutions Accused: Dobson Mitchell & Allport
Judgment Number: [2011] TASSC 36 Number of paragraphs: 118
Serial No 36/2011 File No 521/2009
STATE OF TASMANIA v TERENCE LEWIS MARTIN (NO 2)
REASONS FOR JUDGMENT PORTER J
23 June 2011
Introduction
These are determinations under…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tasmania v Martin (No 2) [2011] TASSC 36
Case
[2011] TASSC 36
Decision Date
CaseChat Overview and Summary
This case involved the determination of a number of preliminary issues in a criminal trial. The accused, Terence Lewis Martin, was charged with four counts in an indictment. The first three counts related to sexual offences against a 12 year old girl. The fourth count related to possession of child exploitation material. The court determined that the fourth count should be severed from the indictment. The court also ruled that the evidence of the possession of child exploitation material could be admitted to rebut statements made by the accused in his police interview. The court ruled that evidence of other men who had sexual contact with the complainant was relevant and admissible, and that leave should be granted for some of that evidence to be adduced.